Date:
20130228
Docket:
A-63-13
Citation: 2013 FCA 61
Present: MAINVILLE
J.A.
BETWEEN:
CANADIAN
BROADCASTING CORPORATION/SOCIÉTÉ RADIO-CANADA
Applicant
and
SOCIETY FOR REPRODUCTION RIGHTS
OF AUTHORS,
COMPOSERS AND PUBLISHERS IN CANADA (SODRAC) INC.
Respondent
Heard
at Ottawa, Ontario, on February 27, 2013.
Order
delivered at Ottawa, Ontario, on February 28, 2013.
REASONS
FOR ORDER: MAINVILLE
J.A.
Date:
20130228
Docket:
A-63-13
Citation: 2013 FCA 61
Present: MAINVILLE
J.A.
BETWEEN:
CANADIAN
BROADCASTING CORPORATION/SOCIÉTÉ RADIO-CANADA
Applicant
and
SOCIETY FOR REPRODUCTION RIGHTS
OF AUTHORS,
COMPOSERS AND PUBLISHERS IN
CANADA (SODRAC) INC.
Respondent
REASONS
FOR ORDER
MAINVILLE J.A.
[1]
Canadian
Broadcasting Corporation/Société
Radio-Canada
(CBC) has filed before this Court an application for judicial review
challenging an interim decision of the Copyright Board (the Board) dated
January 16, 2013, in File 70.2-2012-01 (the Interim Decision).
[2]
This
Interim Decision follows another decision of the Board dated November 2,
2012, rendered under section 70.2 of the Copyright Act, R.S.C.
1985, c. C-42, in which the Board fixed the royalties and related terms and
conditions for a licence authorizing Radio-Canada to reproduce works in
SODRAC’S repertoire for the period from November 14, 2008, to
March 31, 2012 (the CBC Licence).
[3]
In
its Interim Decision, citing sections 66.51 and 70.2 of the Copyright
Act, the Board extended the CBC Licence on an interim basis (with a
discount) from November 3, 2012, until the date of the Board’s final
decision in SODRAC’s application to fix the terms and conditions of a new
licence authorizing CBC to reproduce works from SODRAC’s repertoire for the
period from April 1, 2012, to March 31, 2016.
[4]
CBC
also brought a motion for a stay of the Interim Decision pending this Court’s
decision regarding the application for judicial review. It is also seeking an
extension of the interim licence previously granted by the Board that
authorized it to reproduce works in SODRAC’s repertoire until November 2,
2012.
[5]
CBC
filed before this Court another application for judicial review in Docket
A-516-12, challenging the above-cited decision of the Board dated
November 2, 2012. Astral Media Inc. (Astral) brought a similar application
in Docket A-527-12. CBC and Astral are also seeking a stay of the decision of
November 2, 2012, and they have filed motions to this effect in Dockets A-516-12
and A-527-12.
[6]
Because
the issues in all three matters are similar, they were heard together in Ottawa
on February 27, 2013. These reasons relate to CBC’s motion brought in
Docket A-63-13.
[7]
The
background to this motion and the applicable test are provided in the reasons
issued concurrently with these reasons in Dockets A-516-12 and A-527-12.
[8]
SODRAC
submits correctly that an application for judicial review of an interlocutory
decision is allowed only in exceptional circumstances. Accordingly, it argues
that the motion for a stay should be dismissed because the underlying
application for judicial review does not meet the exceptional circumstances
requirement. SODRAC will have an opportunity to make submissions regarding
exceptional circumstances before this Court, which will consider the merits of
CBC’s application for judicial review. For the purpose of a stay, CBC need only
satisfy the test set out in RJR-MacDonald Inc. v. Canada (A.G.), [1994]
1 S.C.R. 311.
[9]
In
any event, this case is closely connected with the matter involving the same
parties in Docket A‑516‑12, in which I ordered an extension of
CBC’s prior interim licences. This constitutes exceptional circumstances for
the purposes of the stay.
[10]
While
SODRAC argues that there is no serious issue in this matter, I am of the view
that CBC’s application for judicial review of the Interim Decision does involve
a serious issue and therefore satisfies the low threshold of the first stage of
the relevant test. CBC is challenging the Board’s jurisdiction to fix the
interim royalties and related terms and conditions for a licence under
sections 66.51 and 70.2. of the Copyright Act, when one of the
parties in question does not wish to benefit from such a licence. This is a
serious issue.
[11]
I
am also satisfied, for the reasons provided in Dockets A‑516‑12 and
A-527-12, that CBC has shown that it will suffer harm if the stay is not
granted and that the balance of inconvenience weighs in its favour.
[12]
Since
an order was issued in Docket A‑516-12 extending CBC’s prior interim
licences, the appropriate thing to do in the circumstances would be to order a
stay of the Interim Decision.
[13]
CBC
has not asked for costs with respect to its motion; accordingly, there will be
no order as to costs.
“Robert M. Mainville”
Certified true
translation
François
Brunet, Revisor
Email this Content